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24 December 2018
In anticipation of the court's decision in the recent trademark infringement case between The Coca-Cola Company and O Mathisen AS (OM) (for further details please see "JallaXXXXXX: Coca-Cola accuses local soft drink maker of infringing SPRITE mark"), this article looks at the development of the case.
This case has all of the ingredients to be a memorable trademark conflict. First, it is a classic example of a David versus Goliath scenario – with a small local company fighting a large multinational. Further, it includes a famous trademark, SPRITE (although this mark is arguably less famous than the name of the company playing the part of Goliath). In addition, the alleged infringement initially fell under the Trademark Act, but has come within the scope of the Marketing Control Act now that the accused infringer has backed off (albeit not far enough to end the conflict). Finally, the case has been the subject of media attention.
There is no reason to believe that OM was acting in anything but good faith when it decided to name its drink Jallasprite. Its cola drink, Tøyen-Cola, was named in the same vein and consists of two elements:
Similarly, the word 'jalla' is associated with Tøyen (a popular satirical radio show on NRK radio was called Radio Yalla and pretended to be a pirate radio from Tøyen), whereas SPRITE is a trademark. This is where the problems begin.
When OM was first confronted by Coca-Cola, it probably thought that it had a good defence. Parties with no experience of trademark law and concepts such as trademark dilution will probably conclude that Sprite and Jallasprite are distinct. The public are unlikely to believe that Coca-Cola would produce a product called Jallasprite, and the bottles look significantly different.
Based on this belief, OM probably thought that Coca-Cola was bullying it without any legal justification and would back off if OM showed no sign of giving in.
For people with some insight into trademark law and practice, Coca-Cola's continued efforts are unsurprising. It is also unsurprising that the case was picked up by Vårt Oslo, a newspaper whose readers are almost guaranteed to side with the local David against the giant Goliath. OM could not have expected to influence the courts, but it may have hoped that Coca-Cola would find the media attention too costly and choose to back down. At any rate, the media attention probably had marketing value for OM.
All of this has inevitably led the parties to the courtroom: neither side appears to have any strong incentive to back down before the case has been tried at least once.
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